BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |SB 1102                          |Hearing    |4/13/16  |
          |          |                                 |Date:      |         |
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          |Author:   |McGuire                          |Tax Levy:  |No       |
          |----------+---------------------------------+-----------+---------|
          |Version:  |4/6/16                           |Fiscal:    |Yes      |
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          |Consultant|Weinberger                                            |
          |:         |                                                      |
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                Local government:  cities, counties, and other agencies



          Creates an alternative method for collecting transient occupancy  
          taxes on some rental transactions for residential units that are  
          offered for short-term rental through an online platform.


           Background 

           State law allows the legislative body of a city or county to  
          levy a tax on the privilege of occupying a room or rooms, or  
          other living space, in a hotel, inn, tourist home, motel or  
          other lodging unless the occupancy is for a period of more than  
          30 days.  The tax is typically collected from consumers by  
          lodging providers.  Revenues raised through local transient  
          occupancy taxes (TOTs) are most commonly deposited in local  
          general funds for general use.  More than 400 cities and 55  
          counties levy a TOT.  According to data from the State  
          Controller's Office, in the 2011-12 fiscal year, TOTs generated  
          more than $1.5 billion in local government revenues, of which  
          more than $1.2 billion was for general use.

          In recent years, Internet-based hosting platforms, like Airbnb,  
          HomeAway and FlipKey have facilitated increasing numbers of  
          short-term rentals of homes and rooms within residences.   
          Although platforms use various business models, in general, a  
          platform facilitates a rental transactions in which an  
          "operator," who owns, holds a lease for, or manages property,  







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          makes the property available for short-term occupancy in  
          exchange for compensation by a "guest."  The rapid growth in  
          short-term rentals of residential properties has generated  
          concerns that these short-term residential rentals may increase  
          housing costs, negatively affect surrounding residential  
          neighborhoods, and increase demands on public services while  
          generating insufficient local tax revenue to offset the costs of  
          those services.  Under the online short-term rental platforms'  
          business model, individual operators, who cannot be easily  
          identified by a local tax collector, must remit the appropriate  
          amount of TOT revenues due on their rental transactions to a  
          city or county.  Many city and county officials suspect that  
          some operators' failure to comply with local TOT laws results in  
          substantial revenues losses due to under-collection of the tax.

          To improve their ability to enforce the collection of taxes  
          levied pursuant to local TOT ordinances on transaction  
          facilitated by platforms, some large charter cities have  
          individually negotiated tax collection agreements with companies  
          that operate the platforms.  These agreements establish terms  
          under which the platforms, on behalf of the operator who makes a  
          unit available for rent through the platform, collect and remit  
          to local governments taxes that are due on those rental  
          transactions.  However, negotiating individual agreements in  
          each California jurisdiction that imposes a TOT generates  
          unnecessary administrative costs for both public agencies and  
          private companies.  Individual agreements also may result in a  
          patchwork of inconsistent TOT collection practices throughout  
          the state.  To reduce administrative costs and bring greater  
          uniformity to the collection of taxes on transactions that are  
          facilitated through online platforms, some stakeholders want the  
          Legislature to establish an alternative, statewide framework  
          under which platforms can choose to collect and remit transient  
          occupancy tax revenues levied by local governments.


           Proposed Law

           Senate Bill 1102 establishes a program in which a platform that  
          elects to participate (referred to as a "collecting platform")  
          collects and remits TOT revenues that are due on specified  
          rental transactions that the platform facilitates in any city or  
          county exception for a city or county that elects not to  
          participate in the program (referred to as a "collecting  








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          jurisdiction").  Specifically, SB 1102's provisions:
             I.   Establish statutory requirements for a collecting  
               platform to collect and remit TOT revenues to cities and  
               counties under specified conditions.
             II.  Establish the process by which platforms can elect to  
               participate and local governments can elect not to  
               participate in the program.
             III. Require collecting platforms to be subject to an annual  
               audit or review conducted by the State Controller.
             IV. Provide for the continued implementation and enforcement  
               of some existing tax collection agreements between  
               platforms and cities.
             V.  Declare that its provisions do not limit existing local  
               regulatory authority.
             VI. Define several key terms used throughout the bill. 

          I.   Transient occupancy tax collection  .  Senate Bill 1102  
          requires that every collecting platform must collect, on behalf  
          of an operator, the amount of any tax levied pursuant to state  
          laws authorizing local transient occupancy taxes on every rental  
          transaction that is facilitated by a collecting platform for a  
          residential unit that is offered for occupancy for tourist or  
          transient use for compensation to the operator.  This collection  
          obligation begins on July 1, 2017.  A collecting platform is not  
          required to collect tax if a unit is located within a collecting  
          jurisdiction.  SB 1102 requires a collecting platform to remit  
          the amount to the city, county, or city and county that levied  
          the tax pursuant to applicable requirements of local ordinances  
          governing the tax.

          II.   Platform and local government participation  .  Senate Bill  
          1102 requires that the State Controller, on or before March 1,  
          2017, must develop and publicly notice:
                 Procedures that a platform must use to notify the  
               Controller if the platform elects to become a collecting  
               platform.

                 Procedures that a city, county, or city and county must  
               use to notify the Controller if the city, county, or city  
               and county elects to become a collecting jurisdiction.

          SB 1102 directs that:
                 A platform may elect to become a collecting platform by  
               using the procedures developed by the Controller to notify  








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               the Controller of the platform's election no later than  
               April 30, 2017.

                 A city, county, or city and county may elect to become a  
               collecting jurisdiction by using the procedures developed  
               by the Controller to notify the Controller of the city's,  
               county's, or city and county's election no later than April  
               30, 2017.  The city council or board of supervisors of the  
               city, county, or city and county must approve the notice in  
               a public hearing before submitting the notice to the  
               Controller.

          SB 1102 requires the Controller, no later than May 31, 2017, to  
          publicly identify, by posting on the Controller's Internet Web  
          site, each platform and each city, county, or city and county  
          that has provided a notice to the Controller.

          SB 1102 requires that a platform that elects to become a  
          collecting platform, or a local government that elects to become  
          a collecting jurisdiction, may discontinue being a collecting  
          platform or collecting jurisdiction effective July 1, 2020 if it  
          provides notice to the State Controller one year in advance,  
          pursuant to procedures that the Controller must develop and  
          publicly notice. 

          SB 1102 allows a platform that did not elect to become a  
          collecting platform on July 1, 2017 to elect to become a  
          collecting platform by using the procedures developed by the  
          State Controller to notify the Controller of the platform's  
          election, subject to specified conditions.

          SB 1102 establishes an ongoing series of deadlines by which a  
          platform or local government may either become a collecting  
          platform or jurisdiction or discontinue being a collecting  
          platform or jurisdiction.

          III.  Controller's audits or reviews  . Senate Bill 1102 requires,  
          commencing on January 1, 2017, and by December 31 of each year  
          thereafter, the Controller to review or audit a collecting  
          platform's collection and remittance of tax revenue.  For each  
          collecting platform reviewed or audited, the Controller must  
          submit a report to each city, county, or city and county in  
          which the collecting platform collected and remitted taxes.  The  
          report must contain a description of the review or audit finding  








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          and identify any errors in the collection and remittance of tax  
          revenues within each city, county, or city and county that were  
          determined as a result of the review or audit.  The audit or  
          review must not reveal any personally identifiable taxpayer  
          information, including a taxpayer's name and property address.

          SB 1102 makes it unlawful for the Controller or other person who  
          obtains access to information contained in, or derived from, any  
          audit or review, report, or other records of the Controller, to  
          make known in any manner the business affairs, operations, or  
          any other information pertaining to any platform or any other  
          person required to provide information subject to audit or  
          review to the Controller or the amount or source of income,  
          profits, losses, expenditures, or any particular thereof, set  
          forth or disclosed in any such information provided to the  
          Controller, or to permit any audit or review or copy thereof or  
          any book containing any abstract or particulars thereof to be  
          seen or examined by any person.

          SB 1102 requires the Controller, when requested by a city,  
          county, or city and county that is not a collecting  
          jurisdiction, to permit any duly authorized officer or employee  
          of that city, county, or city and county to examine the records  
          of the Controller pertaining to the audit or review of  
          collections by a platform within that city, county, or city and  
          county.  The bill specifies that it must not be construed to  
          allow any officer or employee of that city, county, or city and  
          county to examine any records of any platform.  Information  
          obtained by examination of Controller records must be used only  
          for purposes related to the collection of local transient  
          occupancy tax.

          SB 1102 directs that, if the Controller believes that any  
          information obtained pursuant to specified provisions has been  
          disclosed to any person or has been used for purposes not  
          permitted by the bill, the Controller may impose conditions on  
          access to the Controller's records that the Controller considers  
          reasonable in order to protect the confidentiality of those  
          records.

          SB 1102 allows a platform, city, county, or city and county to  
          appeal any audit findings identified in a review or audit  
          reported by providing a notice of appeal to the Controller's  
          General Counsel and specifies the manner in which the appeal  








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          process must be conducted. 

          SB 1102 allows the Controller to recover the reasonable costs,  
          measured by the Controller's standard rate, of an audit from the  
          audited or reviewed collecting platform.

          The bill declares that a collecting platform that complies with  
          review or audit parameters established by the Controller must  
          not be required to provide to any local jurisdiction, including  
          a collecting jurisdiction, personally identifiable information  
          relating to operators using the collecting platform, or  
          concerning transactions facilitated in the local jurisdiction by  
          the collecting platform.

          IV.   Existing agreements  . Unless a platform and a city, county,  
          or city and county mutually agree to terminate the agreement,  
          all of the following shall apply to a platform and a city,  
          county, or city and county that, on or before June 1, 2016, have  
          entered into a binding legal agreement relating to the  
          collection of any tax levied pursuant to this chapter:
                 The platform and the city, county, or city and county  
               will continue to be bound by the agreement and any election  
               made by the platform or the city, county, or city and  
               county pursuant to this section will not be effective as to  
               any other party to the agreement.

                 The platform and the city, county, or city and county  
               must notify the Controller of the agreement.

                 The platforms' collection or remitting of taxes levied  
               pursuant to this chapter pursuant to the agreement will not  
               be subject to review or audit by the Controller.

          V.   Local regulation  . The bill declares that it provisions do  
          not limit the existing authority of a local jurisdiction to  
          regulate operators, including any local regulation that requires  
          operators to provide information concerning transactions  
          conducted in the jurisdiction, provided that the requirements do  
          not discriminate against transactions facilitated through a  
          platform.

          VI.   Definitions  .  Senate Bill 1102 defines the following terms:
                 "Collecting platform" means a platform that elects to  
               assume the responsibility for collecting and remitting to a  








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               city, county, or city and county on behalf of an operator,  
               the amount of any tax levied pursuant to an ordinance  
               adopted pursuant to state laws governing transient  
               occupancy taxes on a rental transaction that is facilitated  
               by the platform for a unit that is offered for occupancy  
               for tourist or transient use for compensation to the  
               operator.

                 "Collecting jurisdiction" means a city, county, or city  
               and county that elects to retain the responsibility for  
               collecting a tax levied pursuant to an ordinance adopted  
               pursuant to state laws governing transient occupancy taxes  
               directly from operators, rather than having a collecting  
               platform collect and remit the tax on an operator's behalf.

                 "Operator" means a person offering, through a platform,  
               to make a unit available for tourist or transient use.

                 "Platform" means a marketplace that is created for the  
               primary purpose of facilitating the rental of a unit  
               offered for occupancy for tourist or transient use for  
               compensation to the operator of that unit, and the owner of  
               the marketplace derives revenues, including booking fees or  
               advertising revenues, from providing or maintaining that  
               marketplace.

                 "Facilitating" includes, but is not limited to, the act  
               of allowing the operator of the unit to offer or advertise  
               the unit on the Internet Web site provided or maintained by  
               the owner of the platform.


           State Revenue Impact

           No estimate.


           Comments

           1.  Purpose of the bill  . Recent growth in short-term rentals of  
          residential units, which has been made possible by online  
          hosting platforms, is having powerful effects in communities  
          throughout California.  Increased and undisclosed tourist  
          traffic alters neighborhood character, creating additional  








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          demands on local public service providers.  The increase in  
          short-term vacation rentals reduces the availability of already  
          scarce affordable housing in many communities.  In many  
          communities, neither the operators who make residences available  
          for occupancy for fewer than 30 days nor the platforms collect  
          and remit applicable transient occupancy taxes.  SB 1102 will  
          help some local governments collect transient occupancy taxes.   
          The additional revenues recovered pursuant to the bill's  
          provisions will be vital for local governments' efforts to  
          respond to and mitigate short-term vacation rentals' local  
          impacts.  Additionally, by increasing TOT compliance, SB 1102  
          will help enforce a level playing field in the vacation rental  
          marketplace, ensuring that platforms don't gain unfair pricing  
          advantages as a result of operators' nonpayment of taxes.  

          2.   Which transactions  ?  SB 1102 requires a collecting platform  
          to collect and remit applicable TOT revenues on every  
          transaction that the platform facilitates.  It is unclear how  
          this requirement should apply in the context of some platforms'  
          business models.  For example, in the case of a platform that  
          facilitates the rental of rooms in a hotel or inn that also  
          rents rooms to customers who contact it directly, it may make  
          sense for the hotel or inn to collect and remit TOT revenues  
          instead of the platform.  Unlike single family homeowners or  
          apartment leaseholders who make rooms available through  
          platforms, hotel or inn operators are already in the practice or  
          collecting and remitting TOT revenues and are easily subject to  
          local governments' collection and audit procedures.  The  
          Committee may wish to consider amending SB 1102 to apply the  
          alternative TOT collection process to those operators who make  
          units available only through online platforms.  Alternatively,  
          the bill could provide for platforms to disclose some additional  
          information to local governments to identify transactions that  
          are facilitated by a platform involving an operator who also  
          remits TOT directly to local governments.

          3.   Local discretion  .  If a platform elects to become "electing  
          platform," SB 1102 requires a local government to take an  
          action, approved by a vote of its governing board, if it simply  
          wants to maintain its existing authority under state law to seek  
          payment of TOT revenues directly from the responsible taxpayers.  
           Some local officials may object to this requirement, which  
          appears to make a local government's ability to continue  
          collecting taxes in the same manner that it does under current  








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          law conditional on a private company's decision about whether or  
          not it wishes to assume tax collection on behalf of operators  
          who make units available through a platform.  The Committee may  
          wish to preserve local governments' existing tax collection  
          authority by amending SB 1236 to allow local governments to  
          opt-in to the bills' alternative tax collection program, rather  
          than requiring them to opt-out.

          4.   Charter cities  .  The California Constitution allows cities  
          that adopt charters to control their own "municipal affairs."   
          In all other matters, charter cities must follow the general,  
          statewide laws.  Because the Constitution doesn't define  
          "municipal affairs," the courts determine whether a topic is a  
          municipal affair or whether it's an issue of statewide concern.   
          SB 1102 says that it applies to all cities, including charter  
          cities.  To support this assertion, the bill includes a  
          legislative finding and declaration that the bill's provisions  
          are a matter of statewide concern because, by providing  
          short-term rental online platforms with uniform transient  
          occupancy tax administration requirements, the bill will  
          establish a level playing field among all providers and decrease  
          the cost of complying with statutory collection and remittance  
          requirements.

          5.   Mandate  .  The California Constitution requires the state to  
          reimburse local governments for the costs of new or expanded  
          state mandated local programs.  Because SB 1102 imposes new  
          duties on local government officials, Legislative Counsel says  
          that it imposes a new state mandate.  SB 1102 requires the state  
          to reimburse local agencies if the Commission on State Mandates  
          determines that the bill imposes a reimbursable mandate. 


          Support and  
          Opposition   (4/7/16)


           Support :  Unknown.


           Opposition  :  California Hotel and Lodging Association.











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